February 7, 2022
Via Certified and Electronic Mail
Michael Regan, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W. Mail Code 1101A
Washington, DC 20460
Re: Notice of Intent to File Suit Under the Clean Air Act for Failure to Make Statutory Completeness Determinations and Findings of Failure to Submit Regional Haze State Implementation Plans for the Second Planning Period
Dear Administrator Regan,
Under Section 304(b)(2) of the Clean Air Act (“the Act”), 42 U.S.C. § 7604(b)(2), and 40 C.F.R. part 54, the National Parks Conservation Association, Sierra Club, A Community Voice, Alliance for Affordable Energy, Appalachian Mountain Club, Association of Irritated Residents, Badlands Conservation Alliance, Center for Biological Diversity, Central California Asthma Collaborative, Coalition to Protect America’s National Parks, Coalition Against Death Alley, Colorado Renewable Energy Society, Cook Inletkeeper, Diné Citizens Against Ruining our Environment, Earthworks, Environmental Defense Fund, Greater- Birmingham Alliance to Step Pollution (“GASP”) Greater New Orleans Climate Reality Project, Gunnison Valley Climate Crisis Coalition, Healthy Environment Alliance of Utah (“HEAL Utah”), Healthy Gulf, Idaho Conservation League, Inclusive Louisiana, Justice & Beyond Louisiana, Louisiana Bucket Brigade, Minnesota Center for Environmental Advocacy, Montana Environmental Information Center, Piedmont Environmental Council, Southeast Rural Community Assistance Project (“SERCAP”) Tennessee Citizens for Wilderness Planning, To Nizhoni Ani, Utah Physicians for a Healthy Environment, Virginia Conservation Network, Virginia League of Conservation Voters, Voyageurs Conservancy, Western Clean Energy Campaign, Western Environmental Law Center, WildEarth Guardians, and 350 New Orleans (the “Conservation Organizations”) provide notice of their intent to file suit against the Administrator of the U.S. Environmental Protection Agency (“EPA”) for the failure of the Administrator to perform acts or duties under the Act which are not discretionary with the Administrator. 42 U.S.C. § 7604(a)(2).1This notice is provided to you in your official capacity as Administrator of the U.S. Environmental Protection Agency (“EPA”) as a prerequisite to bringing a civil action. 42 U.S.C. § 7604(b)(2); 40 C.F.R. part 54. As used herein, the term “EPA” means the Administrator. Specifically, the Administrator has violated, and is in violation of, his nondiscretionary duties under 42 U.S.C. § 7410(k)(1)(B) by failing to timely issue the statutorily mandated determinations of whether 39 states, listed below, have submitted revised regional haze state implementation plans (“SIPs”) that meet the minimum completeness criteria of 42 U.S.C. § 7410(k)(1)(A). Those SIPs were due July 31, 2021, pursuant to 42 U.S.C. § 7491(b) and 40 C.F.R. § 51.308(f), and the Administrator’s determination of whether the states submitted SIPs meeting the completeness criteria was due 6 months later, that is, by January 31, 2022. 42 U.S.C. § 7410(k)(1)(B). The Administrator is now in violation of his nondiscretionary duty to make that determination. Because these states have in fact failed to submit the required SIPs by the July 31, 2021 deadline, the Administrator further is in violation of a nondiscretionary duty to determine that these states have not submitted SIPs that meet the minimum completeness criteria.
As detailed below, EPA’s immediate issuance of a finding of failure to submit is not only required by the Clean Air Act, but it will further this Administration’s promises to protect air quality in the nation’s national parks and wilderness areas. Decades of delay in finalizing and implementing regulations to reduce visibility impairing haze in our parks and wilderness areas has deprived citizens of the enjoyment of these precious resources, and has caused visitors, employees, and wildlife to be unnecessarily exposed to harmful levels of air pollution. Indeed, the same pollutants that cause visibility impairment in Class I areas also harm public health. 82 Fed. Reg. 3,078, 3,081, 3,117 (Jan. 10, 2017). Thus, timely implementation of the Act’s visibility requirements not only presents a significant opportunity to improve visibility in the nation’s most treasured national parks, but to improve air quality in communities across the country where the largest sources of visibility impairing air pollutants are typically located.2See Memo from Peter Tsirogotis to Regional Air Directors, Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period, at 16 (July 8, 2021) (https://www.epa.gov/visibility/clarifications-regarding-regional-haze-state-implementation- plans-second-implementation) (urging the states and EPA regional offices to consider equity and environmental justice when developing their regional haze strategies for the second planning period).
I. THIRTY-NINE STATES HAVE IGNORED THE CLEAN AIR ACT’S MANDATE TO SUBMIT COMPREHENSIVE STATE IMPLEMENTATION PLANS
In 1977, to protect the “intrinsic beauty and historical and archeological treasures” of the national parks and wilderness areas,3H.R. Rep. No. 95-294, at 203-04 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1282. Congress directed EPA to ensure the development and implementation of Clean Air Act plans that ultimately eliminate all anthropogenic air pollution impairing the nation’s most iconic landscapes. 42 U.S.C. §§ 7491(a)(1), (b). After more than two decades of delay in implementing that mandate, in 1999, EPA finally issued the Regional Haze Rule, which requires the states (or EPA where a state fails to act) to periodically issue SIPs that contain “emission limits, schedules of compliance and other measures” to ensure reasonable progress toward eliminating visibility pollution in Class I national parks and wilderness areas by 2064. 64 Fed. Reg. 35,714, 35,727 (July 1, 1999); 40 C.F.R. §§ 51.308(d)(1), (d)(3). The first of those periodic SIPs were due in 2007. Despite that mandate—and nearly fifteen years after the deadline—several states still do not have fully approved Regional Haze plans for the first planning period.
In 2017, EPA revised the Regional Haze Rule to clarify and strengthen aspects of the Clean Air Act’s visibility program. Among other changes, the revised Regional Haze Rule required each state to “revise and submit its regional haze implementation plan revision to EPA by July 31, 2021, July 31, 2028, and every 10 years thereafter.” 40 C.F.R. § 51.308(f). The submittal is to be a “comprehensive SIP revision” that includes emission limits and other measures to fulfill the Clean Air Act’s reasonable progress requirements. 82 Fed. Reg. 3,078, 3,116; 40 C.F.R. § 51.308(f). As of February 4, 2022, however, the following thirty-nine states have failed to submit to EPA the regional haze implementation plan revision due by July 31, 2021 as required by the Regional Haze Rule, 40 C.F.R. § 51.308(f):
| Alabama Alaska Arizona Arkansas California Colorado Delaware Georgia Hawaii Idaho Illinois Iowa Kentucky | Louisiana Maine Maryland Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Mexico North Carolina North Dakota | Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Utah Vermont Virginia Washington West Virginia Wyoming |
II. EPA IS IN VIOLATION OF ITS MANDATORY STATUTORY DUTY TO ISSUE A FINDING THAT THESE STATES FAILED TO SUBMIT A REGIONAL HAZE SIP REVISION.
Under 42 U.S.C. §7410(k)(1)(B), EPA must determine no later than six months after the date by which a state is required to submit a SIP whether a state has made a submission that meets the minimum completeness criteria established pursuant to 42 U.S.C. § 7410(k)(1)(A). These criteria are set forth at 40 C.F.R. part 51, appendix V. The EPA refers to the determination that a state has not submitted a SIP submission that meets the minimum completeness criteria, or has not submitted a SIP at all, as a “finding of failure to submit.”
As noted, on January 19, 2017, EPA issued a final rule under 42 U.S.C. § 7491(b), requiring each state to submit for EPA review a Regional Haze state implementation plan revision by July 31, 2021. 40 C.F.R. § 51.308(f). As of February 4, 2022, however, each of the above-listed states has failed to submit the regional haze implementation plan revision that was due by July 31, 2021 as required by 40 C.F.R. § 51.308(f).
More than six months have passed since the July 31, 2022 deadline for each of those states to submit the required SIP revisions, yet EPA has not issued the statutorily mandated determinations of whether each such state has made a submission that meets the minimum completeness criteria. EPA’s failure to make such determinations constitutes failure to perform acts or duties that are nondiscretionary with EPA within the meaning of 42 U.S.C. § 7604(a)(2). Further, each of the above-named states has in fact failed to submit the SIP revisions required by July 31, 2021. Under these circumstances, EPA has a nondiscretionary statutory obligation to issue a formal finding that these states have failed to submit the requisite Regional Haze SIP revisions.
III. NOTICE OF INTENT TO SUE
The above-listed Conservation Organizations hereby give notice of their intent to file suit 60 days from the postmark of this letter to compel EPA to perform its overdue mandatory duties under the Clean Air Act as described above.
As required by 40 C.F.R. § 54.3, the persons providing this notice are listed below4While EPA regulations require the entities providing their notice of intent to provide this information, please direct all correspondences and communications regarding this matter to the undersigned counsel.
The Conservation Organizations would welcome the opportunity to meet with EPA to discuss the potential for promptly resolving this matter. If EPA is interested in pursuing discussions on the above matter, please contact the undersigned counsel at joshua.smith@sierraclub.org and cmcphedran@earthjustic.org. If we do not hear from EPA in 60 days, we intend to proceed with filing a complaint in U.S. District Court.
Sincerely,
Joshua Smith Sierra Club
2101 Webster Street, Suite 1300
Oakland, CA 94612
Counsel for Sierra Club
Charles McPhedran Earthjustice
1617 John F. Kennedy Boulevard, Suite 1130
Philadelphia, PA 19103
Counsel for National Parks Conservation Association and Sierra Club
Pursuant to 40 C.F.R. § 54.3(a), the persons providing this notice are:
| National Parks Conservation Association Stephanie Kodish 706 Walnut Street, Suite 200 Knoxville, TN 37902 A Community Voice Beth Butler 2221 St. Claude Avenue New Orleans, LA 70117 Appalachian Mountain Club Georgia Murray PO Box 298 Gorham, NH 03581 Badlands Conservation Alliance Elizabeth Loos PO Box 2337 Bismarck, ND 58501 Central California Asthma Collaborative Kevin Hamilton 4991 E. McKinley Avenue, Suite 109 Fresno, CA 93727 Coalition to Protect America's National Parks Michael Murray 2 Massachusetts Avenue NE Unit 77436 Washington, DC 20013 Colorado Renewable Energy Society Steve Szabo 430 N. College Avenue, Suite 440 Fort Collins, CO 80524 Earthworks Aaron Mintzes 1612 K Street, N.W. Washington, DC 20006 Greater Birmingham Alliance to Stop Pollution (“GASP”) Haley Lewis 2320 Highland Avenue S Birmingham, AL 35205 Greater New Orleans Climate Reality Project Peter Digre 2833 St. Charles Avenue New Orleans, LA 70115 Healthy Environment Alliance of Utah (“HEAL UT”) Karen (Lexi) Tuddenham 824 400 W#111 Salt Lake City, UT 84101 Idaho Conservation League Benjamin Otto 710 N. 6th Street Boise, ID 83702 Justice & Beyond Louisiana Sylvia McKenzie 2021 S. Dupre Street New Orleans, LA 70125 Minnesota Center for Environmental Advocacy Kathryn Hoffman 1919 University Avenue W. Suite 515 St. Paul, MN 55104 Piedmont Environmental Council Daniel Holmes 45 Horner Street Warrenton, Virginia 20186 Tennessee Citizens for Wilderness Planning Jimmy Groton PO Box 6873 Oak Ridge, TN 37831 Utah Physicians for a Healthy Environment Jonny Vasic 423 W. 800 Street, Suite 108A Salt Lake City, UT 84094 Virginia League of Conservation Voters Michael Town 100 W. Franklin Street, Suite 102 Richmond, VA 23225 Western Clean Energy Campaign Eric Frankowski 4518 Lucca Drive Longmont, CO 80503 WildEarth Guardians Jeremy Nichols 301 N. Guadalupe, Suite 201 Santa Fe, NM 87501 Copy (by e-mail): Janet McCabe Deputy Administrator Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, DC 20460 Jeffrey Prieto General Counsel Office of General Counsel U.S. Environmental Protection Agency William Jefferson Clinton Building 1200 Pennsylvania Avenue, N.W. Mail Code: 2310A Washington, DC 20460 Joe Goffman Principal Deputy Assistant Administrator Office of Air and Radiation Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Mail Code: 6103A Washington, DC 20460 Tomás Elias Carbonell Deputy Assistant Administrator for Stationary Sources Office of Air and Radiation Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Mail Code: 6103A Washington, DC 20460 Peter Tsirigotis Director Office of Air Quality Planning and Standards Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Mail Code: C404-04 Washington, DC 20460 Copy (by Certified Mail): Merrick Garland, Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 | Sierra Club Gloria Smith 2101 Webster Street, Suite 1300 Oakland, CA 94612 Alliance for Affordable Energy Logan Burke 4505 S. Claiborne Avenue New Orleans, LA 70125 Association of Irritated Residents Tom Frantz 2076 Hays Street San Luis Obispo, CA 93405 Center for Biological Diversity Robert Ukeiley 1536 Wynkoop St., Suite 421 Denver, CO 80202 Coalition Against Death Alley Elizabeth Soychak 8581 Hwy 18 St. James, LA 70086 Cook Inletkeeper Liz Mering 3734 Ben Walters Ln Homer, AK 99603 Diné Citizens Against Ruining our Environment Adella Begaye HCR 63 Box 272 Winslow AZ 86047 Environmental Defense Fund Graham McCahan 2060 Broadway, Suite 300 Boulder, CO 80302 Greater New Orleans Interfaith Climate Coalition Rev. Gregory T. Manning 2021 S. Dupre Street New Orleans, LA 70125 Gunnison Valley Climate Crisis Coalition Jeff Delaney Healthy Gulf Cynthia Sarthou 935 Gravier Street New Orleans, LA 70112 Inclusive Louisiana Barbara Washington 8191 Pleasant Hill Street Convent, LA 70723 Louisiana Bucket Brigade Anne Rolfes 3416 B Canal Street New Orleans 70119 Montana Environmental Information Center Anne Hedges Box 1184 Helena, MT 59624 Southeast Rural Community Assistance Project (“SERCAP”) Hope F. Cupit 347 Campbell Avenue Roanoke VA 24016, US 24551 To Nizhoni Ani Nicole Horseherder PO Box 483 Kykotsmovi, AZ 86039 Virginia Conservation Network Narissa Turner 701 E. Franklin Street, Suite 800 Richmond, VA 23219 Voyageurs Conservancy Christina Rhode 1400 Van Buren Street NE #200 - 235 Minneapolis, MN 55413 Western Environmental Law Center Ally Beasley 409 East Palace Avenue Santa Fe, NM 87501 350 New Orleans Vickie Boothe 1632 8th Street New Orleans, LA 70115 |